Within Its Wheelhouse - EPA’s Latest Power Plant Regulations Rely on Traditional Approaches Left Available After West Virginia v. EPA

In West Virginia, the Supreme Court looked to EPA’s long history of using such technologies in setting emission limits to inform its understanding of EPA’s authority.21 Further, in West Virginia, the Court explicitly contrasted scrubber technology with generation shifting, suggesting that the former was an example of the kind of add-on control technology that is allowable for the BSER, while the l. [...] whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act. [...] The major questions doctrine provides that, in extraordinary cases involving unprecedented and transformative applications of agency authority, a court should look skeptically on the agency action in question.56 In West Virginia, the Supreme Court stressed that only “extraordinary cases” trigger the major questions doc- trine.57 The bulk of the Court’s analysis of the doctrine’s triggers examined. [...] Nebraska—the first Supreme Court decision to rely on the major questions doctrine after West Virginia—the Supreme Court again reiterated the importance of “the ‘history and the breadth of the authority that the agency had asserted,’” in addition to “the ‘economic and political significance’ of that assertion.”60 Both West Virginia and Nebraska reveal that an agency action does not trigger the majo. [...] The Court explicitly provided that it was not ruling more broadly on “whether the statutory phrase ‘system of emission reduction’ refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER.”83 Further discussion of what can be included in the BSER after West Virginia is beyond the scope of this repo.